Pathways to Decentralising State

Organs

By Othieno NYANJOM

A study commissioned by

Africa Centre for Open Governance

Constitutional and Legal Frameworks

Article 6. (2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation(3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service. Article 20. (The Bill of Rights) apply to all laws and bind all State organs and all persons... (and must be enjoyed) to the greatest extent consistent with the nature of the right or fundamental freedom.Article 21. (It is) a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.Article 35. (1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right

or fundamental freedom. (3) The State shall publish and publicise any important information affecting the nation.

Governance: the Old Order gives way to a New Order

State Organs Central government

ministries

Provinces

Districts

National Government

47 County Governments

Old Constitution

New Constitution

Previously, State organs reached the grassroots through the central government ministries, which gave directives to the provinces, districts and local authorities…

In the new dispensation, State organs must consider how to interact directly with 47 county governments which do not take orders from the national level.

Consequently, Section 16 (2) of the Transition to Devolved Government Act states that: “The Cabinet Secretary of a State department or, in the case of a public entity, an authorized officer shall submit to the Authority and the Commission for the Implementation of the Constitution a transition plan within a period specified by the Commission for the Implementation of the Constitution.

County Planning and Budgeting

CGs are required to produce County Integrated Development Plans (CIDP), which Section (S.) 104 (1) of the County Governments Act declares to be such that “no public funds shall be appropriated outside (CIDP) approved by the county assembly.”

Part XI of the County Government Act (S. 102-115) deals with county planning, with S. 103’s objectives of county planning emphasising harmonising interventions – such as between NG, CG and other State and non-State actors – while S. 104’s obligations emphasise participation – especially by wananchi.

The design and process of participation are highlighted in Part VIII (S. 87-92), while the civic education that is a pre-condition to effective – i.e. informed – participation is the subject of Part X (S. 98-1-1).

Relating the CC/IOs to County Governments

Transition Authority

County Governments

Controller of Budget

Publ

ic P

rocu

rem

ent O

vers

ight

Au

thor

ityKenya National Commission on Human

Rights

Independent Electoral & Boundaries Commission

Ethics & Anti-Corruption Commission

Commission on Administrative Justice

National Gender & Equality Commission

National Land Commission

Public Service Commission via

County Public Service Board

National Police Service Commission

Commission on Revenue

Allocation

Auditor General

Serv

ice

Del

iver

y Salaries & Remuneration Commission

Transition Authority – the basis of devolution. Work incomplete meaning poor preparation for the accession to

devolution: e.g. only now undertaking the critical task of costing functions

Independent Electoral and Boundaries Commission – critical for the accession of devolution.

Successful 2013 general elections, but… Many lingering questions over integrity Has it done enough at grassroots?

Public Service Commission – critical distant role preparing County Public Service Boards

Commission on Revenue Allocation Filled gap in absence of TA Is formula equitable? How facilitate catch up by lagging counties when Equalisation

Fund so small? Office of the Controller of the Budget

Critical reality check over CG budgeting Public Procurement Oversight Authority

Developed County Procurement Regulations How much capacity building is it undertaking?

Auditor General Critical role alongside Budget Office and PPOA

Relating the CC/IOs to County GovernmentsNational Police Service Commission

No strategic plan as at January 2015Any lessons from most recent recruitmentsWhat role for National Police Oversight Authority

National Land CommissionEstablished county level frameworks; but have the basics improved?

Commission of Administrative Justice – OmbudsmanEstablished presence in counties, liaising with related CC/IOs

Kenya National Commission on Human RightsWell established in the counties

National Gender and Equality CommissionCompleted strategic plan and developing grassroots networks

Ethics and Anti-Corruption CommissionWell established head office and some regional presence

CC/IOs – the Way Forward with DevolutionReview all CC/OI legislation to align to the Constitution. Legislate Access to Information Bill; repeal legislation that

currently intimidates public officers over information sharing.Enhance the framework for access to information held by CC/IOs. Specifically, redirect the resources presently utilised

in making glossy plans into providing more detail relevant for CG uptake in their own planning.Improve the content of strategic plans to make them more user-friendly given the capacity constraints faced by CGs.

Specifically, upload strategic plans, work plans and other material that can enable improved access to CC/IOs’ work onto their respective websites.

In consultation with CGs, given their diverse capacity constraints, and levels of development attainment, CC/IOs should engage CGs to ensure more details of their specific intentions – even if in a strategic plan annexe.

Rationalise the mandates of CC/OIs to explore the scope for mergers or alliances that reduce the numbers that CGs have to interact with.

Strategy Activities Beneficiary Counties Budgets/Timleines

Strategic Area 1: XXXXXX

Strategic Objective 1.1: XXXXXXX

Activities Components

1.XXXXXXXX XXXXX XXXXX

XXXX XXXXX

Kes XXX/Months

2. XXXXXXXX

Strategic Objective 1.2: XXXXXXX